Former Attorney General Says Whitaker Appointment 'Confounds Me'

Matt Whitaker participates in a round table event at the Department of Justice on Aug. 29, 2018 in Washington, D.C.

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Originally published on November 10, 2018 5:36 pm

The former attorney general under President George W. Bush is voicing doubt about whether President Trump has the authority to appoint Matthew Whitaker as acting attorney general, saying there are "legitimate questions" about whether the selection can stand without Senate confirmation.

In an interview with NPR, Alberto Gonzales, who served as attorney general from 2005 to 2007, also said that critical comments made by Whitaker about Robert Mueller's investigation into Russian interference in the 2016 election "calls into question his impartiality."

Gonzales's comments add to a chorus of criticism that has faced the Whitaker appointment since Jeff Sessions announced on Wednesday that he was resigning as attorney general at the request of the president. In selecting Whitaker, who served as chief of staff to Sessions, the president passed over the official who had been in charge of the Mueller probe, Deputy Attorney General Rod Rosenstein.

"I've got some issues with this, quite frankly, because the notion that the chief of staff who is not Senate confirmed would have more experience, more wisdom and better judgement than someone like the deputy attorney general or even the solicitor general, people in the line of presidential succession within the Department of Justice, to me, it confounds me," Gonzales said in an interview Saturday with NPR's Michel Martin.

The Whitaker appointment has fueled uncertainty about the future of the Mueller investigation, with many Democrats now urging the former U.S. attorney and Division I football player to recuse himself from overseeing the probe.

Those concerns stem from comments made by Whitaker before he joined the Justice Department last year. In an op-ed for CNN, Whitaker argued that the Mueller investigation had gone too far. He also told the network that he could envision a scenario where Sessions is replaced with an attorney general who "reduces [Mueller's] budget so low that his investigation grinds to almost a halt."

In a separate interview last year with the Wilkow Majority on SiriusXM radio, Whitaker opined on the Mueller investigation, saying, "The truth is there was no collusion with the Russians and the Trump campaign ... There was interference by the Russians into the election, but that is not the collusion with the campaign."

Addressing Whitaker's past statements, Gonzales said he questioned "whether or not putting Mr. Whitaker in this position at this particular time was the wise move." Even if the appointment is lawful, Gonzales said, Whitaker's comments raised "a whole specter of whether or not he should recuse himself, so again, we're right back in the situation where you've got the leadership at the department subject to questioning as to whether or not they can effectively lead the department with respect to one of the most politically charged investigations that's ongoing right now."

On Friday, President Trump responded to criticism that he appointed Whitaker in order to rein in the investigation, saying he has not spoken to him about the probe. The president also said, "I don't know Matt Whitaker," even though he has met with him more than a dozen times. In October, President Trump also told Fox News, "Matt Whitaker's a great guy. I mean, I know Matt Whitaker."

Adding to the concerns of Democrats is Whitaker's ties to a witness in the Mueller investigation: Sam Clovis. In 2014, Whitaker chaired Clovis's campaign for Iowa state treasurer. Clovis went on to work as an adviser to the Trump campaign, and is believed to be one of the campaign officials who spoke with another aide, George Papadopoulos, about overtures Papadopoulos was getting from Russians in London.

The Washington Post, citing "two people close to Whitaker," reported on Thursday that the new acting attorney general has no intention to recuse himself from the Russia investigation. In a statement on Wednesday, Whitaker said he is "committed to leading a fair Department with the highest ethical standards, that upholds the rule of law, and seeks justice for all Americans."

As NPR's Miles Parks and Philip Ewing reported this week, there are multiple ways Whitaker would be able to complicate Mueller's work:

One is simply by declining to continue to pay the investigators or attorneys working for the special counsel. Or by re-assigning them back to their previous jobs in the FBI and the Justice Department or the intelligence community.

Another way is by constraining the authority that Mueller and his office have to conduct the investigations they want.

... When the special counsel's office wants to issue a subpoena or send investigators or call witnesses before a grand jury, the deputy attorney general is often involved. If the new leadership at the Justice Department didn't want to go along, however, that could constrain Mueller's ability to investigate as he sees fit.

And, if nothing else, having an attorney general who isn't recused from Mueller's work might give the White House a clearer look inside it.

Gonzales said he was unsure of what could be done if Whitaker moved to stop the Mueller investigation. Such a dramatic step is sure to trigger a fight between Congress and the executive branch about access to what Mueller has so far found, he said.

"The [Justice] Department may simply assert privilege based on law enforcement privilege to protect the integrity of the investigation and to encourage honest dialogue between investigators and prosecutors. Whether or not that privilege would be upheld in the court remains to be seen," he said.

But Gonzales said it shouldn't have to come to that.

"I'm extremely troubled that a change may have been made here to stop an investigation, which by all accounts is almost complete," he said. "I think we just wait and let this thing play out, let Bob Mueller write his report and let the American people know what actually happened here."

The audio version of this story was produced by Dana Cronin and Ammad Omar.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

MICHEL MARTIN, HOST:

Now we'd like to turn to the bombshell that President Trump delivered the day after the election. Attorney General Jeff Sessions was forced out, and his former chief of staff, Matthew Whitaker, was in as acting attorney general. Whitaker's office quickly confirmed that he would be, quote, "in charge of all matters under the purview of the Department of Justice," unquote, which means that Whitaker, who had been a vocal critic of Robert Mueller's investigation into possible Russian interference in the 2016 election, is now overseeing it.

This appointment has raised a bevy of questions about the legality of the appointment, as well as about Whitaker himself. To assess all this, we have another former attorney general, Alberto Gonzales. He served as attorney general and White House counsel in the presidency of George W. Bush. He's now dean of the Belmont University School of Law, and he's with us now from Nashville, Tenn.

Dean Gonzales, thank you so much for joining us once again.

ALBERTO GONZALES: It's always a pleasure to be with you on your show.

MARTIN: Well, thank you for that. First of all, questions are being raised about whether this appointment is even legal. Critics are saying that anybody serving in this role has to get Senate confirmation for this position, and they question why the deputy attorney general, Rod Rosenstein, was not placed in this role. What's your take on that?

GONZALES: I've got some issues with this, quite frankly, because the notion that the chief of staff, who is not Senate-confirmed, would have more experience, more wisdom and better judgment than someone like the deputy attorney general or even the solicitor general - people in the line of presidential succession within the Department of Justice - to me, it confounds me. I have to question why that decision was made.

Putting aside the question of whether or not it can be done legally, it creates additional problems or questions about the leadership at the Department of Justice at a time when we don't need any more questions about the leadership. You know, for two years, the department has been under attack. For two years, Jeff Sessions has been under attack. For two years, the Mueller investigation has been under attack. I think the last thing the department needs today is more questions about the leadership there. And so, for that reason, I - you know, I don't want to say I disagree with the president's choice. I just find it a very odd choice given the circumstances.

MARTIN: And is the discomfort one of optics, or is there, in fact, a legitimate question about his authority to hold this position?

GONZALES: I think it's both. I think there is a question. I'm assuming someone spoke to the Office of Legal Counsel at the Department of Justice before the appointment was made and inquired as to whether or not, would this be lawful? But it's the optics that I'm also concerned about. Whether or not it's lawful or not - and, obviously, the lawfulness is an important issue - but, even if it is lawful, I question whether or not putting Mr. Whitaker in this position at this particular time was a wise move, particularly when you add on top of everything else his public comments about the Mueller investigation. And I think it calls into question his impartiality. I think it raises a whole specter of whether or not he should recuse himself.

So, again, we're right back in the situation where you've got the leadership at the department, you know, subject to questioning as to whether or not they can effectively lead the department with respect to one of the most politically-charged investigations that are - that's ongoing right now.

MARTIN: So let me just refresh people's memories, if they don't recall, about why you say that. As a commentator, Whitaker is on record having said that the investigation needs to be reined in. He's asserted there was no Russian interference into the election. He's called suggestions of collusion between the Trump campaign and Russia, quote, "crazy." He's suggested defunding the special counsel's investigation and called on the investigation to be wrapped up quickly. But, as we said, in his public statements or statements about him, there's no suggestion that he's considered recusing himself from the case. Could you just describe again why that is problematic for the people who are concerned about the integrity of the department or the perceptions of its integrity?

GONZALES: Well, let me first say one thing in defense of Mr. Whitaker. You know, he made those comments when he was out of the department. He did not have access to information about the investigation. It very well may be that when he gets briefed about the merits of the investigation he may decide, you know what? I was wrong. There's a lot here, and this is a very important investigation, and it should be allowed to complete. But, nevertheless, I do agree that those comments have raised a series of very serious questions, and it - those - and for that reason I question the appointment at this particular time.

GONZALES: Before we let you go, as a former attorney general, you certainly received your fair share of criticism. That goes with the job. But I am interested - as a person who held that seat and is now in the position of training future lawyers, future officers of the court - how does this whole thing sit with you?

GONZALES: Based upon the reporting, I'm troubled. I'm extremely troubled that a change may have been made here to stop an investigation which, by all accounts, is almost complete. I think we just wait and let this thing play out, let Bob Mueller write his report and let the American people know what actually happened here.

MARTIN: That is Alberto Gonzales. He's a former attorney general of the United States. He's now serving as dean of the Belmont University School of Law. He's with us from Nashville.